Murtha Means More

Business Litigation


Contact: Michael J. Donnelly

Contact: Thomas S. Vangel, Chair

Disputes are a fact of life in all industries.  However, for most of our clients, disputes are not at the center of their business plan.  Instead, disputes are expensive and time consuming distractions for your key personnel.  Our commercial litigation team prides itself on working with our clients to develop strategies to resolve disputes in accordance with the client’s business objectives in the most efficient and effective way possible, whether the dispute involves seeking recovery or defense from claims.  We achieve those results by helping the client to develop a realistic business objective, and then applying tools like early case assessment to plan how best to achieve those objectives.  We are very comfortable in private negotiations, mediation, arbitration or in the state or federal courts. 

The following are some of the results Murtha Cullina has achieved recently for clients:

Recoveries:

  • In January and February 2014, we successfully represented a publicly traded regional bank in a lender liability case involving a failed 108 unit housing development.  After a ten day trial in Superior Court in Boston we recovered $4.8 million judgment for the bank client (the full amount sought) plus attorneys’ fees and defeated entirely a $5.8 million counterclaim asserted by the developer. The claims asserted by the developer at trial included Chapter 93A unfair business practice, breach of covenant of good faith and fair dealing and breach of contract. Fraud, interference with contractual/advantageous relations and promissory estoppel claims asserted by the developer against the Bank were dismissed on summary judgment. Webster Bank v. Steven E. Goodman, et al, Civil Action No. 2011-0761-A (Suffolk Super. Ct).
  • Obtained preliminary injunctive relief against all reach and apply defendants to prevent them from transferring, encumbering, or otherwise dissipating any limited liability company membership interest or other property held for the benefit of certain guarantors so that our client, Webster Bank, could reach and apply those guarantors’ interests to its judgment.  We obtained prejudgment attachments on the guarantors’ residences as well.  We then won summary judgment in Webster Bank’s favor.  Webster Bank, N.A. v. McAuliffe, et al., No. 10-3573 (Mass. Super. Ct. 2011).
  • Sued a franchisee and several guarantors for breach of several franchise agreements as well as a promissory note.  We won summary judgment on the promissory note claim and a court ruling that none of the defendants’ affirmative defenses precluded recovery on the franchise claims.  Pizzeria Uno Corp. v. Pizza By Pubs, Inc., et al., No. 09-CV-12015, 2011 U.S. Dist. LEXIS 101648 (D. Mass. Sept. 9, 2011).
  • Represented Cendant Corporation to enforce its $3.2 billion criminal restitution orders against convicted former President E. Kirk Shelton and former CEO and Board Chairman Walter A. Forbes.  The actions included numerous claims to set aside millions of dollars of fraudulent transfers and for the imposition of constructive trusts.  They were resolved pursuant to confidential settlement agreements.  Cendant Corporation v. E. Kirk Shelton, et al., No. 3:06-CV-854 (D. Conn. 2007);  United States of America and Cendant Corporation v. Walter A. Forbes, et al., No. 3:08-CV-00933 (D. Conn. 2009).
  • After successfully defending a motion to dismiss, we secured a multi-million dollar settlement of breach of fiduciary claims against former directors and officers of a publicly traded company for operating in the zone of insolvency.  Christopher J. Panos, Trustee of the RoweCom Liquidating Trust v. Sullivan, (In re Sabine, Inc.), Adv. Pro. No. 05-01019-JNF (Bankr. D. Mass. May 28, 2008).   
  • Obtained injunctive relief and attachment of assets in support of collection of $132,000,000 criminal restitution judgment held by manufacturing company against former directors and officers.  Tyco International, Ltd. v. L. Dennis Kozlowski and Mark Swartz, et al., No. 06-2310 (Mass. Super. Ct., Suffolk County, June 16, 2006).

Defense Victories:

  • Successfully defended client which had prevailed on a public RFP process to purchase property.  Claim asserted that our client had participated in an unfair process with the public entity running the bid process.  We obtained a withdrawal of the claim, a public apology and repayment of legal fees.
  • Defended a claim against a water utility for breach of contract and tort claims arising from an agreement to develop wells, treatment and storage facilities for a residential housing development.  The plaintiff initially sought over 1.5 million dollars in damages.  We countersued for breach of contract.  After a five-day bench trial, the court rejected the plaintiff’s claims entirely and entered judgment for our client, the water utility, on its counterclaim for over $380,000.  Dream Developers of Cape Cod, Inc. v. Eastern Connecticut Regional Water Company, Inc., et al., No. MMX-CV-07-5002735-S, 2012 Conn. Super. LEXIS 3 (Jan. 4, 2012); 2011 Conn. Super. LEXIS 730 (Mar. 24, 2011).
  • Won summary judgment for Century 21 in an action by a private mortgage lender who alleged that a real estate agent affiliated with a Century 21 franchisee made misrepresentations in connection with four real estate transactions, causing it to lend money that was never repaid.  The plaintiff alleged that Century 21 should be held vicariously liable for the agent’s alleged misrepresentations and that Century 21 had committed unfair and deceptive practices.  Brooks Place Properties, LLC v. DiMaria, et al., No. SUCV 2011-01467, 2012 Mass. Super. LEXIS 203 (June 18, 2012).
  • Defended DuPont against a 19-Count Complaint challenging the termination of three Distribution Agreements for DuPont products.  The Court denied plaintiff’s Motion for Preliminary Injunction on June 1, 2006 [2006 U.S. Dist. LEXIS 35813 (D. Me. June 1, 2006)], ordered dismissal of five Counts pursuant to DuPont’s Motion to Dismiss for Failure to State a Claim [460 F. Supp. 2d 153 (D. Me. 2006)], granted Summary Judgment for DuPont and its co-defendant Parksite, Inc. on most of the remaining claims [517 F. Supp. 2d 466 (D. Me. 2007)], and ultimately entered Judgment for DuPont and Parksite on the remaining claims after granting their Joint Motion in Limine [2007 U.S. Dist. LEXIS 90057 (Dec. 6, 2007).].  All of the District Court actions were affirmed by the U.S. Court of Appeals except for the Connecticut Franchise Act claim, which was remanded for further proceedings.  New England Surfaces v. E. I. du Pont de Nemours and Company, 546 F.3d1 (1st Cir. Sept. 28, 2008) clarified at 546 F.3d11 (1st Cir. Oct. 21, 2008).
Description

Contact: Michael J. Donnelly

Contact: Thomas S. Vangel, Chair

Disputes are a fact of life in all industries.  However, for most of our clients, disputes are not at the center of their business plan.  Instead, disputes are expensive and time consuming distractions for your key personnel.  Our commercial litigation team prides itself on working with our clients to develop strategies to resolve disputes in accordance with the client’s business objectives in the most efficient and effective way possible, whether the dispute involves seeking recovery or defense from claims.  We achieve those results by helping the client to develop a realistic business objective, and then applying tools like early case assessment to plan how best to achieve those objectives.  We are very comfortable in private negotiations, mediation, arbitration or in the state or federal courts. 

The following are some of the results Murtha Cullina has achieved recently for clients:

Recoveries:

  • In January and February 2014, we successfully represented a publicly traded regional bank in a lender liability case involving a failed 108 unit housing development.  After a ten day trial in Superior Court in Boston we recovered $4.8 million judgment for the bank client (the full amount sought) plus attorneys’ fees and defeated entirely a $5.8 million counterclaim asserted by the developer. The claims asserted by the developer at trial included Chapter 93A unfair business practice, breach of covenant of good faith and fair dealing and breach of contract. Fraud, interference with contractual/advantageous relations and promissory estoppel claims asserted by the developer against the Bank were dismissed on summary judgment. Webster Bank v. Steven E. Goodman, et al, Civil Action No. 2011-0761-A (Suffolk Super. Ct).
  • Obtained preliminary injunctive relief against all reach and apply defendants to prevent them from transferring, encumbering, or otherwise dissipating any limited liability company membership interest or other property held for the benefit of certain guarantors so that our client, Webster Bank, could reach and apply those guarantors’ interests to its judgment.  We obtained prejudgment attachments on the guarantors’ residences as well.  We then won summary judgment in Webster Bank’s favor.  Webster Bank, N.A. v. McAuliffe, et al., No. 10-3573 (Mass. Super. Ct. 2011).
  • Sued a franchisee and several guarantors for breach of several franchise agreements as well as a promissory note.  We won summary judgment on the promissory note claim and a court ruling that none of the defendants’ affirmative defenses precluded recovery on the franchise claims.  Pizzeria Uno Corp. v. Pizza By Pubs, Inc., et al., No. 09-CV-12015, 2011 U.S. Dist. LEXIS 101648 (D. Mass. Sept. 9, 2011).
  • Represented Cendant Corporation to enforce its $3.2 billion criminal restitution orders against convicted former President E. Kirk Shelton and former CEO and Board Chairman Walter A. Forbes.  The actions included numerous claims to set aside millions of dollars of fraudulent transfers and for the imposition of constructive trusts.  They were resolved pursuant to confidential settlement agreements.  Cendant Corporation v. E. Kirk Shelton, et al., No. 3:06-CV-854 (D. Conn. 2007);  United States of America and Cendant Corporation v. Walter A. Forbes, et al., No. 3:08-CV-00933 (D. Conn. 2009).
  • After successfully defending a motion to dismiss, we secured a multi-million dollar settlement of breach of fiduciary claims against former directors and officers of a publicly traded company for operating in the zone of insolvency.  Christopher J. Panos, Trustee of the RoweCom Liquidating Trust v. Sullivan, (In re Sabine, Inc.), Adv. Pro. No. 05-01019-JNF (Bankr. D. Mass. May 28, 2008).   
  • Obtained injunctive relief and attachment of assets in support of collection of $132,000,000 criminal restitution judgment held by manufacturing company against former directors and officers.  Tyco International, Ltd. v. L. Dennis Kozlowski and Mark Swartz, et al., No. 06-2310 (Mass. Super. Ct., Suffolk County, June 16, 2006).

Defense Victories:

  • Successfully defended client which had prevailed on a public RFP process to purchase property.  Claim asserted that our client had participated in an unfair process with the public entity running the bid process.  We obtained a withdrawal of the claim, a public apology and repayment of legal fees.
  • Defended a claim against a water utility for breach of contract and tort claims arising from an agreement to develop wells, treatment and storage facilities for a residential housing development.  The plaintiff initially sought over 1.5 million dollars in damages.  We countersued for breach of contract.  After a five-day bench trial, the court rejected the plaintiff’s claims entirely and entered judgment for our client, the water utility, on its counterclaim for over $380,000.  Dream Developers of Cape Cod, Inc. v. Eastern Connecticut Regional Water Company, Inc., et al., No. MMX-CV-07-5002735-S, 2012 Conn. Super. LEXIS 3 (Jan. 4, 2012); 2011 Conn. Super. LEXIS 730 (Mar. 24, 2011).
  • Won summary judgment for Century 21 in an action by a private mortgage lender who alleged that a real estate agent affiliated with a Century 21 franchisee made misrepresentations in connection with four real estate transactions, causing it to lend money that was never repaid.  The plaintiff alleged that Century 21 should be held vicariously liable for the agent’s alleged misrepresentations and that Century 21 had committed unfair and deceptive practices.  Brooks Place Properties, LLC v. DiMaria, et al., No. SUCV 2011-01467, 2012 Mass. Super. LEXIS 203 (June 18, 2012).
  • Defended DuPont against a 19-Count Complaint challenging the termination of three Distribution Agreements for DuPont products.  The Court denied plaintiff’s Motion for Preliminary Injunction on June 1, 2006 [2006 U.S. Dist. LEXIS 35813 (D. Me. June 1, 2006)], ordered dismissal of five Counts pursuant to DuPont’s Motion to Dismiss for Failure to State a Claim [460 F. Supp. 2d 153 (D. Me. 2006)], granted Summary Judgment for DuPont and its co-defendant Parksite, Inc. on most of the remaining claims [517 F. Supp. 2d 466 (D. Me. 2007)], and ultimately entered Judgment for DuPont and Parksite on the remaining claims after granting their Joint Motion in Limine [2007 U.S. Dist. LEXIS 90057 (Dec. 6, 2007).].  All of the District Court actions were affirmed by the U.S. Court of Appeals except for the Connecticut Franchise Act claim, which was remanded for further proceedings.  New England Surfaces v. E. I. du Pont de Nemours and Company, 546 F.3d1 (1st Cir. Sept. 28, 2008) clarified at 546 F.3d11 (1st Cir. Oct. 21, 2008).
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